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On July 31, 2020, an Ontario court heard a motion by the Advocacy Centre for Tenants Ontario (“ACTO”) and two residential tenants for an order setting aside Chief Justice Geoffrey B. Morawetz’s order dated July 6, 2020 which varied his order dated March 19, 2020. 

The March 19, 2020 order had effectively placed a moratorium on residential evictions in Ontario. As a result of the order made on July 6, 2020, the moratorium ended July 31, 2020. 

ACTO sought to reinstate the moratorium by setting aside the July 6, 2020 order.

ACTO’s Arguments

ACTO is a legal clinic governed by the Legal Aid Services Act, 1998, which works to advance the rights and systemic concerns of low-income tenants and other vulnerable “precariously housed and homeless Ontarians.” It has a long history of advocating for the interests of the homeless, for eviction prevention, and for affordable housing.

ACTO argued that it was premature to lift the moratorium on evictions and that the Chief Justice was not told of the continuing risks to individuals facing eviction and to others in the community. ACTO adduced evidence of the continued threat posed by COVID-19 to people in Ontario, especially low-income tenants facing eviction, and even more so to vulnerable, homeless people, and people in government shelters.

ACTO was in the process of looking for tenants facing evictions and loss of their homes; it said that these individuals had a direct interest in the issues before the court and ought to be heard. ACTO proposed to be recognized as a class representative going forward. 

In addition, for the motion before the court, ACTO put forward the evidence of two tenants. 

Evidence Given by the Two Tenants

The first tenant works as a cashier. She is 53 years old and suffers from chronic medical issues. After a dispute with her landlord that resulted in claims by both sides before the Landlord and Tenant Board, the first tenant and her landlord reached a settlement. They consented to an order dated March 18, 2020 under which she agreed to leave the rented premises on June 1, 2020. 

The first tenant testified that she had no place to go. She had no friends or family who had extra space where she could live. She stated that if she was evicted, she would likely become homeless or have to enter the shelter system. 

The second tenant’s sole source of income is from Ontario Works. She also qualifies for a housing subsidy from the City of Toronto. The second tenant had experienced homelessness before and did not want to undergo that trauma again.

In January, 2020, the Landlord and Tenant Board had ordered the second tenant evicted without notice based on a prior written agreement to terminate the tenancy. At a subsequent hearing, the second tenant settled with her landlord and agreed to vacate the rental unit by May 31, 2020.

The second tenant stated that she too had no place to go and that she expected to be forced to live on the streets because she understood that the shelter system would not have room for her. 

Court Refuses Motion

The court began by stating:

“I have no doubt that a tenant who is evicted and exposed to an increased risk of COVID-19 on the streets or in shelters suffers harm that cannot be readily compensated in money. That is the definition of “irreparable harm” for the purpose of this type of motion.”

However, the court continued: 

“The balance of convenience test compares the harm to the moving parties if a stay is denied  against the harm to the responding parties if a stay is granted. None of the landlord associations or tenant groups are parties as yet. But I am asked to balance the risk of COVID-19 to the subset of evicted, vulnerable tenants and mortgagors who may end up homeless or in shelters against the economic risk to landlords and mortgagees of a further delay of evictions for all tenants and mortgagors for a few weeks or months.

That equation defines the difficulty with the issues argued before me by both the purported landlord and tenant representatives. I do not believe that this is an issue for the court nor an issue that was properly before the Chief Justice. Questions of how the Province should battle the pandemic and the necessary policy choices among competing views – all good, decent, and honestly-held – are for the government. The Chief Justice never embarked on a legal determination of whether Ontario should stop residential evictions because the danger to some vulnerable tenants outweighed the risks to landlords. [T]hat would mix the court in the government’s business and cross the lines separating the respective branches of government.”

Ultimately, the court refused to grant the motion. The court found that ACTO and the two tenants’ concerns were not properly directed at the Chief Justice’s order re-opening court enforcement services. The court concluded that while there may be individual concerns for individual eviction proceedings and there may be systemic concerns that are properly addressed with the government, it did not find any issue raised that could properly lead to a stay of the Chief Justice’s order.

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